Unknown vs Deputy Registrar on 27 January, 2021

[Cites 51, Cited by 0]

Uttarakhand High Court

Unknown vs Deputy Registrar on 27 January, 2021

Bench: Lok Pal Singh

                                                        Reserved Judgment




IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL



            Writ Petition No. 619 of 2018 (M/S)

Sherwood Diocesan College Society, Nainital Diocese of
Agra, Church of North India through its Chairman The Rt.
Revd. Dr. P.P. Habil through its Power of Attorney holder
Mr. Ashish Paul Habil S/o The Rt. Revd. Dr. P.P. Habil R/o
4/116 B Church Road, Civil Lines, Agra
                                                      ........Petitioner


                                Versus


1. Deputy Registrar, Firms, Societies and Chits Haldwani,
   District Nainital
2. Amandeep Sandhu S/o Kuldeep Singh Sandhu Resident
   of Sherwood College, Nainital
3. Sherwood Diocesan College Society Nainital through its
   Chairman/Bishop Most Rev. John Augustine, Diocese of
   Lucknow, Church of India, Pakistan, Burma, Ceylon
   (CIPBC), Christ Church M.G. Road, Hazratganj, Lucknow
4. Most Rev. John Augustine, son of Z. Augustine, resident
   of St. Mary School, Para Road, Rajajipuram, Lucknow
5. Vijay Mantode son of Madhukar Mantode, resident of
   570/90 C Qasimpur Pakri Kheda Lucknow L.D.A.,
   Sector-H Alambagh, Lucknow


                                                      .....Respondents
Present:

Mr. Santosh Kumar, learned counsel for the applicants/respondent nos.3
and 4.
Mrs. Meenakshi Arora and Mr. Arvind Vashishtha, learned Senior Advocates
assisted by Mr. Imran Ali Khan, Advocate for the petitioner.
Mr. Yogesh Chandra Tewari, learned Standing Counsel with Mr. Mohinder
Singh Bisht and Mr. Gajendra Tripathi, learned Brief Holders for he State.
Mr. R.P. Nautiyal, learned Senior Advocate assisted by Mr. Mahavir Kohli
and Mr. Tejas Agarwal, Advocate for respondent no.2



Hon'ble Lok Pal Singh, J.

2 Modification Application MCC No.540 of 2020 Modification Application MCC No.540 of 2020 has been moved by the applicants/respondent nos.3 and 4 to modify the order dated 25.05.2018 passed in WPMS No.619/2018 Sherwood Diocesan College Society vs. Deputy Registrar, Firms, Societies and Chits and others on the ground that the respondent nos.3 and 4 filed a Civil suit no. 04 of 2018 Sherwood Diocesan College Society and another Vs. Deputy Registrar and others before Civil Judge (Senior Division) Nainital, for permanent injunction and declaration of the list of members of the Society, elected in the ordinary meeting for the year 2016-17 as valid alongwith an application for temporary injunction. On 14.02.2018, the trial court did not pass any order on the temporary injunction application moved by the plaintiff/respondent no.3 and 4 under Order 39 Rules 1 and 2r/w Section 151 of CPC, and fixed the case for 14.02.2018 for hearing on the application. Feeling aggrieved by order dated 14.02.2018, the plaintiff preferred civil revision before the learned District Judge, Nainital being Civil Revision No.16 of 2018, wherein an interim order dated 28.02.2018 was passed thereby restraining the defendant from holding any meeting and fixed 23.03.2018 for hearing. Against the order dated 28.02.2018, the petitioner herein, who was neither a party to the suit nor the revision, preferred the present writ petition before this Court.

2. In the modification application, the applicant/respondent nos.3 and 4 has stated that in earlier writ petitions before the Hon'ble Court (in which applicants were not a party) being WPMS No. 1173 of 2011, 1040/2011, 1113/2011 and 1469/2012, decided by a 3 Coordinate Bench of this Court, vide order dated 19.03.2014, it was held that the Deputy Registrar (Societies) has no jurisdiction to decide the inter-se dispute between the parties and that the parties shall be liberty to approach competent civil court for adjudication of their respective rights about the entitlement to run the society, membership and office bearers of the society.

3. In civil suit no.04 of 2018, it was pleaded that in pursuance of the aforesaid order dated 19.03.2014 none of the parties therein ever filed a civil suit for adjudication of their respective rights. Rather the deputy Registrar (Societies) sent a letter dated 26.05.2017 that unless the civil court approves the list of members of governing body, no proceeding can be done with regard to renewal of the said societies. It was also pleaded in the suit that the defendant no.2 Sherwood Diocesan Society Nainital, Diocese of Agra, Church of North India through Secretary Amandeep Sandhu, (respondent no.2 as impleaded in the suit) has no concern with the plaintiff no.1 Society. Defendant no.2 claims to be secretary of the petitioner but in the bye-laws and article of the society there is no mention of Diocese of Agra. The defendant no.2 in collusion with petitioner in order to make claim over the school being run by plaintiff no.1 and said society, are in every endeavour to convene illegal meeting on 15.02.2018 and 03.03.2018. It is further stated that apart from the aforesaid Rule and Regulations dated 04.08.1952 no other bye laws/amendment have ever been registered with the Deputy Registrar (Societies) and thus the said petitioner claiming himself to be Chairman of the Governing Body of the plaintiff society has no locus, right or concern with the plaintiff no.1 Society. It is also noteworthy that Rt. Rev. 4 Dr. P.P. Habil has neither in the writ petition nor with his impleadment application in the said suit even prima facie shown that he is named in any of the list of members of governing body of plaintiff society or said lists were ever forwarded to Deputy Registrar for registration.

4. It is further stated that the plaintiffs/applicants have properly impleaded the necessary parties to the suit but the allegations of the petitioner regarding collusion of plaintiff no.1 and defendant no.2 / respondent no.2 herein are also per-se false and illegal. The petitioner Dr. P.P. Habil, claiming himself to be the Chairman of plaintiff no.1 society, has no locus at all and further Diocese of Agra of Church of North India, has no legal existence. It is further stated that the Hon'ble Supreme Court vide its judgment in Vinod Kumar Malviya vs. Maganlal Gameit (2013) 15 SCC 394 has nullified the unification of six churches whereby the Church of North India (CNI) claims its establishment and existence. The legal status of CNI is no more reintegrate since the Supreme Court has declared the merger of the churches as illegal. The Diocese of Agra is a unit of Church of North India therefore Agra Diocese of Church of North India has no role to play in the above said society.

5. It is also stated that the petitioner claiming under the alleged chairmanship of Dr. P.P. Habil in order to make ground for his claim to the plaintiff society is resorting to convening illegal meetings, which have no legal sanctity pending the said civil suit no.04 of 2018, filed by the applicant/plaintiff. The petitioner tried to convene meeting of plaintiff Society earlier on 15.02.2018 and 03.03.2018 which have been narrated in the suit, in 5 furtherance of his said illegal acts and knowingly well that the civil suit is pending i.e. the matter is sub-judice before the civil court, the petitioner has again circulated a letter dated 05.10.2020 to schedule a meeting of the Governing Body of the Sherwood Diocesan College, Nainital on 21.10.2020.

6. It is further stated that the petitioner has no right to convene any meeting with regard to the plaintiff society even otherwise any such meeting at the behest of any person, pending the said civil suit, greatly prejudices the legal interest of the plaintiff/applicant. It is further submitted that the petitioner again and again is trying to convene meeting of the plaintiff society without any right or authority, especially when the matter is pending before the learned Civil Court, the same is not only illegal but also in utter defiance of the earlier orders / directions passed by the Court in aforementioned writ petitions decided on 19.03.2014. It is further stated that when the applicant/plaintiff has instituted a civil suit with regard to the said society and the same is sub-judice, further the application of the said petitioner for impleadment in the said suit is also pending, the endeavour of the petitioner to convene meeting on 21.10.2020 by trying to take advantage of the present situation of pandemic and the fact that the civil courts are not properly functioning, clearly reveals that under the garb of such meeting, the petitioner wants to prejudice the interest of plaintiff in the said suit so as to adversely effect the adjudication of said suit on merits.

Objections filed by the petitioner to Modification application (CLMA No.10773 of 2020) 6

7. Petitioner has filed objections no.10773 of 2020 to the modification application stating that this Court, by judgment and order dated 25.05.2018, remitted the matter to the trial court to decide the interim relief application on its merit. It is stated that to the best information of the petitioner, the applicants have not pursued suit no.4/2018 or application for interim relief thereafter. It is stated the present modification application has been filed being aggrieved by a subsequent event, namely, the notices issued to the Secretary of the petitioner by the Chairman of the petitioner Society directing the petitioner to convene a meeting of the Sherwood Diocesan College Society. It is further stated that the relief as sought in this application by way of modification application cannot be granted as the court has become functus officio. The applicant has not filed any review but is seeking new relief by way of modification application which is not tenable.

8. It is also stated by the petitioner that for three years, despite several requests, the Secretary/respondent no.2 has not convened any meeting whereas as per the Memorandum of Association, there has to be an Annual General Meeting for the budget to be passed and approved, apart from Governing Body Meetings of the Society. It is further stated that due to failure on the part of the Secretary of the petitioner Society, the Chairman of the Society/petitioner was compelled to convene a meeting of the Governing Body of the Society on 21.10.2020, as per the notice dated 05.10.2020, for statutory compliances. It is further stated that the applicants/respondent nos.3 and 4 are not members of 7 the Governing Body and not even of the Society, and as such, cannot have any grievance in this regard. The meeting held on 21.10.2020 and the decisions taken in the meeting to initiate appropriate disciplinary proceedings against the Secretary/respondent no.2 has nothing to do with the outcome of the suit filed by the applicants, since the issues to be decided in civil suit filed by the applicants are wholly different. It is also stated that the applicants cannot have a graver grievance than the Secretary/respondent no.2. If at all, he has any grievance, it is for him to raise it before the civil court in the pending suit as rightly relegated to by this Court in its order dated 25.05.2018. It is also stated that the applicants/respondents are total strangers to the intra- dispute between the Society and its Secretary/respondent no.2.

9. It is further stated that the applicants/ respondent nos.3 and 4, under the guise of modification is seeking review of the final order, which is not maintainable. It is also stated that the present application has rendered infructuous as pursuant to the letter dated 05.10.2020 the meeting of the governing body of the petitioner Society has been duly held on 21.10.2020.

Respondent nos.3 and 4/Applicant's reply to the objections filed by the writ petitioner in modification application

10. In reply, it is stated that it is wrong to state that the applicants have not pursued the matter before the trial court. The suit was listed before the trial court on 29 dates after the order dated 25.05.2018 passed by this Court. On 8 six occasions, the court was vacant and on another seven occasions the court could not be held because of lockdown. On other dates, the matter was adjourned for procedural compliance. It is further stated that in the modification application, no new dispute requiring fresh adjudication has been raised. The relief claimed in the modification application is only in nature of clarification to the extent of holding the meeting of society, when the dispute of membership is pending before the civil court. It is further stated that in exercise of inherent powers under Section 151 CPC, the court can recall the order, if judgment is being rendered void by the action of the party.

Delay condonation application (CLMA No.10070 /2020)

11. In the delay condonation application, it is stated that the delay has been caused in filing the recall application since many documents as mentioned in the application which has bearing on lis raised came to the knowledge of the applicant in the year 2018. It is further submitted that some documents were suppressed by the writ petitioner which came to the knowledge of the applicant in October 2020.

Recall application MCC No.621 of 2020

12. Thereafter, a recall application MCC No.621 of 2020 along with delay condonation application CLMA No.10070 of 2020 has been moved by the applicants/respondent nos.3 and 4 to recall the judgment and order dated 25.05.2018 stating that by an order dated 19.03.2014 passed in WPSS Nos.1173 of 2011 and connected matters, this Court has directed the parties to approach the civil court for adjudication of their respective rights about the entitlement to run the society. Said order 9 has also been confirmed in appeal. But despite these orders, the writ petitioner called for the meeting of Society on 21.10.2020 to push their agenda. It is stated that the writ petitioner has misled this Court by concealing the material facts which had bearing in deciding list between the parties. It is stated that concealment of material facts tantamount to practicing fraud and this itself is a ground for recall of order.

13. It is further stated that the properties situated in State of U.P. were entrusted by the Church Missionary Trust Association Ltd., a company duly incorporated in England, to Lucknow Diocesan Trust Association (hereinafter to be referred as LTDA) vide two trust deeds dated 24.12.1952 and 2.7.1954. It is stated that the LTDA is a company limited by guarantee, which was incorporated under Section 26 of the Indian Companies Act, 1913, on 09.08.1924. The Company was incorporated with an object to aid and further the work of the Church of England in the Diocese of Lucknow. The said Church of England in India became Church of India or the Indian Church as per the provision of the Indian Church, Act 1927 thus it is now become Church of India-CIPBC, Dioceses of Lucknow.

14. It is stated that a registered deed dated 25.10.2008 has been manufactured by alleged members of LDTA in favour of new trustees of Agra Diocesan Trust Association (hereinafter to be referred as ADTA). This deed was written and registered on a stamp of Rs.750/- and it is claimed that by means of this deed, several properties in Western U.P. as well as in Uttarakhand were transferred to ADTA. As regards the deed of 25.10.2008 it is stated that the said deed was impounded by the concerned authorities 10 on account of being written on much less valued stamp papers of Rs.750/- only, while it purportedly carries the transfer of several properties. It is stated that in stamp dispute case no.299/2009 affidavit was filed by Secretary, ADTA wherein in para 5 it has been categorically stated that property has not been transferred by Lucknow Diocesan Trust Association in favour of Agra Diocesan Trust Association and in this regard an FIR No.206/2013 has also been registered against the alleged members of LDTA who have fraudulently executed the trust deed dated 25.10.2008.

15. It is further stated in an information sought by the respondent no.2 herein under the RTI Act from Deputy Registrar, Firm Societies and Chits, Haldwani, Nainital in relation to who is the legal Chairman of Sherwood Diocesan College Society and what is the legal status of Prem Prakash Habil, it was replied that it cannot be said as to who is the Chairman of Society in wake of claim of rival contestants. Further, no list has been registered with the office of Deputy Registrar as far as registered bye-law of Society of 1952 is concerned. It is thus stated by the applicants/respondent nos.3 and 4 that Rev. P.P. Habil cannot claim himself as Chairman of Sherwood Diocesan College Society, Nainital and calling the meeting of Society by the writ petitioner on 21.10.2020 is illegal and it tramples upon the rights of respondent no.3 and 4/applicant.

16. It is further stated that the petitioner did not approach this Court with clean hands. The claim of the petitioner regarding unification of six churches was negated by the Hon'ble Supreme Court in its judgment and 11 order dated 30.09.2013 passed in Civil Appeal No.8800- 8801 of 2013. In the said judgment, the creation of Church of North India (CNI) has been declared illegal and therefore CNI can no longer be in control of administrative affairs of Sherwood Diocesan College Society. Added to it, the byelaws of the Society has not been amended after 1952. Therefore, Bishop of Lucknow so appointed by CIPBC continues to be Chairman of Sherwood Diocesan College Society. It is undisputed that the applicant is the only Bishop of Lucknow, as appointed of CIPBC and therefore, the applicant is the Chairman of Sherwood Diocesan College Society.

Objections on delay condonation application

17. Respondent nos.3 and 4 have moved the application seeking condonation of delay of 905 days for filing the recall of judgment dated 25.02.2018 passed by this Court. It is submitted that inordinate delay of 905 days has not been sufficiently explained and therefore the application for condonation of delay deserves to be dismissed at the outset. It is submitted that documents filed by the respondent nos.3 and 4 are much prior in date and were executed much before the judgment dated 25.05.2018 passed by this Court. The applicants/respondent nos.3 and 4 cannot take this imaginary plea that the same were not in their knowledge. It is well settled position of law that each day of delay has to be sufficiently explained. The petitioner/non-applicant has not explained each day's delay. The applicants/respondent nos.3 and 4 have mentioned in paragraph no.3 of the affidavit that the documents sought to be relief upon in the recall application came to their knowledge in the year 2018. Even then respondent nos.3 12 and 4/applicants did not approach this Court but waited for nearly two years. It is also stated that there is inordinate delay of 905 days in filing the recall application and the delay has not been sufficiently explained.

18. It is stated that the civil suit no.4/2018 is still pending and at the time of filing of said suit, the applicants/respondent nos.3 and 4 were fully aware that Mr. Amandeep Sandhu was the Secretary of Sherwood Diocesan College Society, Nainital and Principal of Sherwood College on account of his appointment to the said post by Sherwood Diocesan College Society, Nainital, being administered by Diocese of Agra, Church of North India. It is also stated that the applicants/respondent nos.3 and 4 and Amandeep Sandhu colluded and devised a surreptitious plan so as to ensure that while petitioner society was restrained, there was no impediment in the continuation of Mr. Amandeep Sandhu as Principal and to bypass the Sherwood Diocesan College Society, Nainital. On 14.02.2018, in pursuance of the illegally conceived plan and conspiracy, applicant/respondent nos.3, applicant nos.3 and 4 filed an application under Order 39 Rule 1 and 2 of the Code seeking restraining order against petitioner from conducting any meeting or carrying on any other activity regarding the management of Sherwood College Society pending the final disposal of the suit. It is reiterated that petitioner/defendant no.2 i.e. Sherwood Diocesan College Society, Nainital was arrayed in the memo of parties as being represented by its Secretary Mr. Amandeep Sandhu, who was also the Principal. Since the grant of the relief sought in the application would amount to restraining the Principal, Mr. Amandeep Sandhu from continuing, hence, on the very same day itself, i.e. 13 14.02.2018 Mr. Amandeep Sandhu, despite not being arrayed as a party in his independent capacity, also filed an application under Order 39 Rule 1 and 2 in suit no.4/2018 contending that for the past many years, Sherwood College is being run and managed and looked after by him. Amandeep Sandhu further alleged that the plaintiff and other persons claiming themselves to be Bishops were causing hindrance to the smooth functioning of the school and creating hurdles in the face of the school under the garb of the rival claims which is causing the problems with the Principal to run the schools only. Hence, it was prayed that the plaintiff or any other person, association etc., may be restrained from interfering in the smooth running of the school till disposal of the present suit.

19. It is further stated that Mr. Amandeep Sandhu is not arrayed as a party in suit no.4/2018 in his individual capacity but as Secretary Sherwood Diocesan College Society, Nainital. Hence, the application filed by him in the suit, in his individual capacity, is neither tenable nor maintainable in the eyes of law.

20. It is also stated that the applicant/respondent no.4 and Amandeep Sandhu who till then were opposing parties i.e. plaintiff and Secretary of defendant in the civil suit, surprisingly began to support to each other. On 19.03.2018, petitioner Society on knowing about the collusion by its Secretary and appointed Principal, immediately through Bishop Diocese of Agra, Church of North India filed an application in Suit No.4/2018 seeking impleadment and substitution in place of Amandeep Sandhu as defendant no.2. Further, since the petitioner 14 Society was directly aggrieved by the judgment dated 28.02.2012 passed by revisional court, it challenged the said order before this Court in the present writ petition. It is further stated that the petitioner Society was constrained to challenge the order dated 28.02.2018 as Amandeep Sandhu, the Secretary of the Petitioner Society, had acted without the instructions of petitioner Society and colluded with plaintiff in suit no.4/2018.

21. It is further stated that on each date of the hearing in the present writ petition, applicants/ respondent nos.3 and 4 was represented and present before this Court and on 25.05.2018, this Court after a detailed hearing, was pleased to allow the writ petition. It is stated that a bare perusal of the instant application clearly reveals that the applicant/respondent nos.3 and 4 are primarily aggrieved on account of the letter dated 05.10.2020 circulated by the petitioner to schedule a meeting of the Governing Body of the petitioner Society on 21.10.2020. It is further stated that the present application has rendered infructuous as pursuant to the letter dated 05.10.2020 the meeting of the Governing Body of the petitioner Society has been duly held on 21.10.2020 and pursuant to the said meeting, Amandeep Sandhu has been suspended as the Principal of Sherwood College Nainital. It is further stated that the applicants/respondent nos.3 and 4 are not members of the Governing Body and not even in the Society, and as such, cannot have any grievance in this regard. It is further stated that the applicants/respondent nos.3 and 4 instead of pursuing the civil suit has filed the instant untenable recall application after sleeping for over two years.

22. It is also stated that the present application filed by the applicants/respondent nos.3 and 4 is hopelessly barred by limitation. Applicants/respondent nos.3 and 4 has not sufficiently explained the long delay of more than 900 days.

23. It is further stated that during the pendency of the modification application and without withdrawing the aforesaid application, applicant/respondent no.3 and 4 has preferred the present application seeking recall of the final order dated 25.05.2018 passed by this Court on subsequent events which amounts to abuse of process of law.

24. I have heard learned counsel for the parties and perused the entire material brought on record.

25. Learned counsel for the applicants/respondent nos.3 and 4 would submit that the writ petitioner has concealed the material facts from this Court which had bearing on the lis. He would submit that the unification of six churches by resolution no.70/80 has been disbelieved by the Hon'ble Supreme Court in Vinod Kumar M. Malviya vs. MangalLalmangal Das Gameti & ors. (2013) 15 SCC 394 but this fact was not brought to the notice of the Court. He would submit that by Trust Deed dated 25.10.2008 properties were shown to be bifurcated whereas the true fact is that no bifurcation of properties had taken place, which fact can be verified from the stamp dispute case no.299 of 2009 wherein an affidavit was filed by N. Munawar, Secretary of Agra Diocesan Trust Association, stating that properties have not been transferred by LDTA in favour of ADTA. He submits that 16 neither any bifurcation nor any transfer of the properties has been made and the properties at Nainital still vests with the LTDA.

26. Learned counsel for the applicants would further submit that there has been no amendment of Memorandum, Rules and Regulations of 1952 (Original bye-laws) and as such the Chairman of Sherwood Diocese College Society Nainital is the Bishop of Diocese of Lucknow i.e. the plaintiff no.1.

27. Learned counsel would further submit that this Court has the power to recall the order on the ground of stark fraud since "fraud and justice never dwell together". To bolster his argument, he would place reliance on a judgment of Hon'ble Supreme Court in the case of Budhia Swain & Ors. Vs. Gopinath Deb & Ors. (1994) 4 SCC 396, wherein it was held that recall of the earlier order may be made in the following circumstances:-

"8. In our opinion a tribunal or a court may recall an order earlier made by it if

(i) The proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent.

(ii) There exists fraud or collusion in obtaining the judgment.

(iii) There has been a mistake of the court prejudicing a party of

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented."

28. Learned counsel would also place reliance on the following judgments :-

(i) Vijay Syal V. State of Punjab (2003) 9 SCC 401, wherein it has been held as under:-

"24. In order to sustain and maintain the sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false of knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take the consequences that follow on account of its own making. At times lenient or liberal generous treatment by courts in dealing with such matters is either mistaken or lightly taken instead of learning a proper lesions. Hence, there is a compelling need to take a serious view in such matters to ensure expected purity and grace in the administration of justice."

(ii) Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, wherein it has been held as under:-

"35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind in conduct of the party who is invoking such jurisdiction.

If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in large public interest to dear unscrupulous litigants from abusing the process of court of deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.

(iii) In K.D. Sharma Vs. Steel Authority of India Limited, (2008) 12 SCC 481, the Apex Court held as under:-

"If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and `clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant 19 requires to be dealt with for contempt of Court for abusing the process of the Court."

(iv) Dalip Singh Vs. State of Uttar Pradesh and others (2010) 2 SCC 114 "7. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: (Prestige Lights Ltd. Case, SCC p. 462 para 35). In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are 20 distorted, the very functioning of the writ courts would become impossible."

(v) ManoharLal (Dead) by Lrs. Vs. Ugrasen, (2010) 11 SCC 557 "47. The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. "Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice." Who seeks equity must do equity. The legal maxim "Jure naturaw aequum est neminum cum alterius detrimento et injuria fieri locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another."

(v) In State of Madhya Pradesh v. Narmada Bachao Andolan and another (2011) 7 SCC 639, the Apex Court in para 164 held that it is a settled proposition of law that a false statement made in the Court or in the pleading intentionally to mislead the Court and obtains favourable order amounts to criminal contempt.

(vi) The High Court of M.P. in Rajendra Singh Rawat Vs. State of M.P. (I.L.R. 2012 MP 2660), culled out the principles, as under :-

1. A writ remedy is an equitable one. While exercising extraordinary power a writ court certainly bear in mind 21 the conduct of the party who invokes the jurisdiction of the Court.

2. Litigant before the writ court must come with clean hands, clean heart, clean mind and clean objective. He should disclose all facts without suppressing anything.

Litigants cannot be allowed to play hid and seek or to pick and choose the facts he likes to disclose and to suppress (keep back)/conceal other facts.

3. Suppressed or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation which has no place in equitable and prerogative jurisdiction.

4. If litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and misleads the Courts, the Court has inherent power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in its duty.

5. Such a litigants requires to be dealt with for Contempt of Court for abusing the process of the Court.

6. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.

7. The litigation in the Court of law is not a game of chess. The Court is bound to see the conduct of party who is invoking such jurisdiction.

(vii) S.P. Chengalvaraya Naidu Vs. Jaganath 1994 (1) SCC 1 "Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non-est 22 in the eyes of law. Such a judgment/decree-by the first court by the highest Court- has to be treated as nullity by every Court; whether superior or inferior. It can be challenged in any Court even in Collateral proceedings."

29. As regards the delay in filing the recall application, learned counsel for respondent nos.3 and 4/applicants would submit that in the modification and recall application, the applicant/respondent nos. 3 & 4 has taken a plea of fraud, that they could get the knowledge of concealment of material facts in October, 2020. Thus, in such circumstances, the provisions of Section 17 of Limitation Act are clearly attracted and the limitation shall not begin to run till the date, the respondent no. 3 & 4 discovered the fraud or got knowledge of the same. To buttress his submission, learned counsel would place reliance on a judgment of Hon'ble Supreme Court in the case of Ramesh B. Desai & others Vs.Bipin Vadilal Mehta 2006 (5) SCC 638. Relevant paragraph of the said judgment is quoted hereunder:-

"4.1 It is submitted that what constitutes a "sufficient cause" under Section 5 of Limitation Act, there is no straitjacket formula for determining the same. The Hon'ble Supreme Court has noted in Collector, Land Acquisition, Anantnag and Ors. Vs. Katiji and Ors. (AIR 1987 SC 1535) that "the expressions of sufficient cause is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice". The Hon'ble Supreme Court also stressed on the importance of a justice oriented approach in the interpretation of "sufficient cause" on the following grounds:-

 A litigant ordinarily does not stand to benefit by lodging an appeal late.

 Refusal to condone delay can result in a meritorious matter being dismissed at the very threshold, thus defeating the cause of justice. As against this, the highest that can happen on condonation of delay is that a case would be decided on merits after hearing the parties.

 The doctrine of "Every day's delay must be explained"

has to be applied in a rational, common- sensical and pragmatic manner, and a pedantic approach should not be adopted.

 When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred.

 There cannot be a presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restoring to delay.

30. Learned counsel would further place reliance on a decision in State (NCT of Delhi) Vs. Ahmed Jaan (2008) 14 SCC 582, wherein it held that the term "sufficient cause" should be considered with pragmatism in justice- oriented approach rather than technical detection of sufficient cause for explaining every day's delay.

31. Per contra, learned senior counsel appearing for the writ petitioner would submit that there is an inordinate delay of 905 days in filing the present recall application and the applicants have not sufficiently explained the delay. In such circumstances, the delay condonation 24 application is liable to be condoned. He would further submit that the applicants have maintained a stoic silence as to which of the documents were in its knowledge in the year 2018 and which of the documents came to its knowledge in October 2020 and how they came to their knowledge.

32. He would further submit that the modification application as well as recall application is not maintainable as applicants primary grievance is based on a subsequent event i.e. letter dated 05.10.2020 whereby Sherwood Society, through Diocese of Agra called for a meeting of the Governing Body on 21.10.2020. He submits that since the meeting has already been conducted, thus, the present applications are misconceived and have been rendered infructuous. Furthermore, pursuant to the meeting, respondent no.2 has been suspended and an interim principal has also been appointed.

33. He would further submit that the applicants cannot seek recall of the order dated 25.05.2018 as they were represented in the proceedings before this Court since the very inception. He would further submit that the applicants, are seeking review of the final judgment 25.05.2018, in the guise of recall application, which is impermissible. To bolster his submissions, learned senior counsel would place reliance on a judgment passed by the Division Bench of the Allahabad High Court recently in Naunihal Haidar Vs. Assistant Settlement of Consolidation and others reported in 2020 SCC Online 1412, wherein the said Division Bench reiterated the difference between review and recall of an order, and has held as under .

84. The Division Bench of the Allahabad High Court held as follows:

17. There is a marked difference between "recall" and "review". As is apparent from the application titled as Civil Misc. recall/restoration application the same had been field with a prayer to recall the order dated 26.10.2017 and to restore the writ petition to its original number...."

18. The Apex Court in the case of Asit Kumar Kar Vs. State of West Benal : (2009) 2 SCC 703 has held that there is a difference between recall and review and has held as under:

"6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petitioner the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."

19. The said judgment of Asit Kumar Kar (supra) has been following in the judgment of Vishnu Agarwal Vs. State of Uttar Pradesh (2011) 14 SCC 813.

20. The learned Single Judge completely fell in error while deciding the application for recall/restoration application by treating it as an application for review. Prayer made in the said recall/restoration application is as has been quoted above just plain and simple for recalling of the order by which the petitioner was dismissed as infructuous and further the prayer that the writ petition be restored to its original number. There is no prayer whatsoever in the said application that the order be reviewed."

34. He further submits that it is settled principle of law that recall/modification of judgment which has affect of reviewing original judgment in writ petition cannot be entertained. The proper recourse for any party would be to move a review application. In this regard, he would place reliance on B.K. Pavithra and others vs. Union of India and others (2020) SCC Online Sc 822, wherein it has been held as under:-

"23. This Court has, on several previous occasions, considered whether the filing of applications, though styled as applications for directions/ modification/recall/correction are, in substance, of a different nature and consequentially not maintainable. In Delhi Administration v Gurdip Singh Uban14 ("Gurdip Singh"), this Court disapproved of the practice of filing applications for "clarifications", "modifications" and "recall" of final judgments and orders, noting that this was an attempt to bypass the provisions for review contained in Order XL of the Supreme Court Rules 1966. The Court observed:

"17. We next come to applications described as applications for "clarification", "modification" or "recall" of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued.

... In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed 27 and heard in open court. However, with a 14 (2000) 7 SCC 296 view to avoid this procedure of "no hearing", we find that sometimes applications are filed for "clarification", "modification" or "recall" etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing... By describing an application as one for "clarification" or "modification", -- though it is really one of review -- a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly.

24. The Court observed that many applications, though styled as applications for clarification or modification are, in substance, applications for review. This practice was presumably adopted to bypass the procedure stipulated for the consideration by this Court of review petitions. A party, it was held, would not be permitted to circumvent substantive procedures by filing such applications. With the above observations, the Court affirmed a fundamental principle of jurisprudence that "what cannot be done directly cannot be permitted to be done indirectly."

25. The view of the two judge Bench in Gurdip Singh has been reiterated by this Court in Zahira Habibullah Sheikh v State of Gujarat, Common Cause v Union of India16, Ram Chandra Singh v Savitri Devi and APSRTC v Abdul Karim18.

26. Recently, in M C Mehta v Union of India, a two judge Bench of this Court rejected an application filed before it seeking a clarification that the applicant is permitted to carry out construction on the land in question in the following terms:

"...the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation.

27. The Court noted the growing practice, despite the decision of this Court in Gurdip Singh, of filing applications before this Court with different nomenclatures in order to bypass or circumvent the procedure envisaged for the consideration of the reliefs sought. This Court clarified that the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application."

35. As regards the contention of learned counsel for the applicants that the property in relation to Sherwood College is not mentioned in the said deed and therefore the Diocese of Agra through ADTA is not an owner of the property of Sherwood College, learned senior counsel would submit that the question in relation to ownership of property where Sherwood College, Nainital is situated does not arise in the present proceedings. The applicants have filed the suit for management of Sherwood Diocesan College Society and not in relation to ownership of the property where Sherwood College, Nainital is situated. It is submitted that the issue of ownership has not bee pleaded in the suit, and therefore, cannot be relied upon by the applicant in the recall application.

36. This writ petition was filed by the petitioner seeking the following relief:-

"Issue a writ, order or direction in the nature of certiorari quashing the order dated 28.02.2018 passed by District Judge, Nainital in Civil Revision No.16 of 2018 Sherwood Diocesan College Society Nainital through Chairman Bishop and another vs. Sherwood Diocesan College Society Nainital, Diocese of Agra through Secretary Amandeep Sandhu and others."

37. Though the writ petitioner was not party to the civil suit no.04 of 2018 but on the basis of pleadings made by the writ petitioner in the present writ petition and considering the legal position that against an order of adjournment, which is not even an interlocutory order, the revision is not maintainable before the District Judge, Nainital, this Court while observing that the revisional 30 court has overstepped in the matter and has exceeded its jurisdiction, entertained the writ petition suo moto and set- aside the order dated 23.3.2018 passed by the revisional court and remanded the matter to the trial court to decide the interim relief application filed by the applicants/respondent nos.3 and 4.

38. The writ petition i.e. Sherwood Diocesan College Society, Nainital Diocese of Agra, Church of North India who claims its title to have been derived from Church of North India did not brought into the notice of this Court that the unification of six churches has been nullified by the Hon'ble Supreme Court in Vinod Kumar M. Malviya vs. Magan Lal Mangaldas Gameti & ors. (2013) 15 SCC 394 and the legal status of Church of North India is no more reintegrate. Relevant paragraphs of the said judgment are extracted hereunder:-

"2.3. These Change Reports were filed to give effect to the unification of six churches which included the FDCB, an offshoot of the 'Brethren Church' of USA (other Churches being The Council of the Baptist Churches in North India, The Church of India, Pakistan, Burma and Ceylon, The Methodist Church (British and Australian Conference), The Methodist Church in Southern Asia and The United Church of Northern India) into a single entity, 'The Church of North India' (with the Gujarat Chapter being managed by the Church of North India, Gujarat, Diocese).

2.4. This unification is the result of a process which commenced from 1929. The negotiation meetings commenced from 1955 onwards which had representatives from the uniting churches who discussed every aspect of the emerging entity. A result of which was 31 the Plan of Church Union in 1965 called the 4th Revised Edition in the form of a printed booklet published by the Negotiating Committee and widely circulated and deliberated by the uniting Churches which adopted the same. The plan traced the historic background leading to the creation of the CNI and dealt with all aspects of the same. Part-II of the same pertained to procedural details of the unification. The plan is a result of the negotiations through various meetings convened in the years 1955, 1956, 1957, 1961, 1964 and 1970. The Managing Committee of the FDCB being the 'District Committee' initially participated in these meetings as an observer, however, from 1956, it joined the negotiation process. It is alleged that Resolution No. 70/08 was passed on February, 17, 1970 pursuant to which the CNI was formed by merging the six churches. FDCB being one of the six churches, discussed the unification internally within its 21 Societies and put the same to vote at different junctions and in the final decision, the resolution was approved by 3/5th majority of the representatives of the Governing Body. Allegedly, on November 29, 1970, the FDCB merged with the other six churches to form CNI and accepted the same as its legal continuation and successor and vested with the CNI its rights, titles, claims and FDCB's interests together with its privileges and obligations.

2.5. In 1976, the Church of North India Trust Association (hereinafter referred to as 'the CNITA') was formed under the Indian Companies Act, 1956 and appointed as the trustee of CNI. It has been alleged that the annual meetings of the FDCB were discontinued post 1971. That certain members which had earlier given consent to Resolution 70/08 began to raise objections that FDCB continued to exist. Subsequently, the original plaintiff (Shri A.O. Patel) filed Civil Suit No. 72 of 1979 in the 32 Court of the Civil Judge, Senior Division, Bharuch for a declaration that FDCB has come to an end and that CNI is the legal successor and continuation of the same. During the pendency of the suit, CNI got itself registered retrospectively and Change Report Nos. 44/81 and 665/81 were filed before the Charity Commissioner to give effect to the changes resulting the unification. The aforementioned suit, after an appeal before the District Judge, Bharuch went before the Gujarat High Court as Second Appeal No. 303 of 1986, the same was dismissed and the matter came up before this Court as Church of North India v. Lavajibhai Ratanjibhai (In Civil Appeal No. 9419 of 2003, decided on May 3, 2005). Therein, the question which arose before this Court was: whether Section 80 of the BPTA imposes a bar on the jurisdiction of the Civil Court.

16. The property of a Society under Section 5 of the SR Act, if not vested in trustees, then only shall vest for the time being with the governing body of such society. The properties of FDCB vested with public trust, being No.E- 643/ Bharuch. It was also recognized by this Court in Church of North India v. Lavajibhai Ratanjibhai wherein it was observed thus :

"60. We are not oblivious of the fact that the resolution adopted in the meeting held on 17-2-1970 allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act but it is now beyond any controversy that the society having not owned any property, their transfer in favour of a new society was impermissible in law. In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society."

The resolutions produced and the deliberations made in the internal meetings of FDCB only talk about amalgamation of FDCB with the other churches and the intent to dissolve the society and the registered trust is not conveyed and cannot be read into the same. On the basis of these resolutions and deliberations, the claim of the appellants that CNI is the successor of the property of the FDCB, which vests with the registered trust, does not hold good.

19. In addition to the above, there are evident lapses in the formation of CNI which have been observed by the High Court in paragraph 17 of its judgment and we also concur with the view of the High Court wherein:

19.1 Firstly, it is alleged that CNI was formed on November 26, 1970 post Resolution 70/08 dated February 17, 1970, however the same was sought to be registered in 1980 and given registration with effect from 1971. The same is contrary to the requirements as laid down in Section 18 of the BPTA which requires registration of a public trust within three months of a creation as per clause (b) of sub-section (4). The Act is also silent about the registration with retrospective effect. But the dispute is not regarding the interpretation of the procedure of registration under the BPTA, therefore, we refrain from going further into the details of the same.

19.2 The second lapse which exists is that in 1976, the Church of North India Trust Association (CNITA) was formed under the Indian Companies Act, 1956 and appointed as the trustee of CNI; a trust allegedly existing since 1971 which succeeded FDCB in 1970 which was allegedly dissolved and its annual meetings discontinued since 1971. A suit for declaration of CNI as the successor of FDCB was filed in 1979 (held not to be maintainable in Church of North India). During the pendency of the 1979 suit, Change Report Nos. 44 of 1981 and 665 of 1981 were filed in 1980. This situation created a scenario where FDCB simply vanished after the 1970 resolutions and who 34 managed its properties till CNITA is an unresolved question, identified by this Court in Church of North India (supra) which stated that "67....Furthermore, there is nothing on record to show the mode and manner of the management and control of the trust property." Subsequently this Court in the abovementioned case discussed the procedure under the BPTA which is reproduced as under:

"70.....The BPT Act provides for express exclusion of the jurisdiction of the civil court. In various provisions contained in Chapter IV, a power of inquiry and consequently a power of adjudication as regards the list of movable and immovable trust property, the description and particulars thereof for the purpose of its identification have been conferred. In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to the trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of succession to the office of the trustee as also whether any property is the property of such trust. It is only when the statutory authority satisfies itself as regard the genuineness of the trust and the properties held by it, is an entry made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof."

19.3 The above facts clearly show non-compliance with the procedure under BPTA. The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts.

20. Therefore, we are of the opinion that the claim of the appellants that following unification of FDCB with CNI 35 after the purported resolution resulted in the dissolution of FDCB making CNI its legal successor and controller of its properties, does not hold good and cannot be accepted. The High Court has rightly observed that :

"..... The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law."

21. Since the FDCB trust never stood dissolved, the properties of the same will not vest with CNI. Earlier also, this Court in Church of North India (supra) has observed the same and stated that :

"73...the purported resolutions of the churches affiliated to the Brethren Church and merger thereof with the appellant, having regard to the provisions of the Act was required to be done in consonance with the provisions thereof. It is not necessary for us to consider as to whether such dissolution of the churches and merger thereof in the appellant would amount to alienation of immovable property but we only intend to point out that even such alienation is prohibited in law."

23. Firstly, we would answer the issue of the jurisdiction of the Charity Commissioner and lower courts. The choices of the community herein are the purported resolutions and deliberations. These resolutions are an attempt to effect a change in management and ownership of the FDCB trust properties in a manner which is against the law of the land. However, it is the case of the appellants that as per Articles 25 and 26, they are free to manage their own affairs and have relied on judgments of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt and Ratilal Panachand Gandhi v. State of Bombay .

25. Regarding the issue of estoppels raised by the appellants, we feel that there is no need to interfere or clarify the views of the High Court which are as under:

"...Therefore, the submission made on the ground of estoppel that once having accepted the Resolutions or having participated at the time of discussion on Resolution or unification, same people have backed out. Therefore, they are stopped from now changing their stand is without any basis and misconceived. There is no question of having changed the stand or faith but it is a question which is required to be considered whether one sect like the Church of Northern India can impose religion faith, acquire the trust and its property and take away total state of affairs for the managing of such Trust, which have been established for management of the various Churches at different levels. The principles of estoppel or promissory estoppel in such cases have no application."

Furthermore, the High Court has rightly opined that:

"..... Therefore, there is no question of any promise made out, for which, the estoppel could come into play. In fact, even if it is assumed that some of the people had initially participated at some stage with regard to merger or unification of the Church of Brethren Trust into the Church of North India, one can still have a re-look or fresh thinking at the entire episode and have a different opinion at later stage, which cannot be prohibited. The constitutional provision under Articles 25 & 26, which is the genesis for such freedom has granted such right, which cannot be taken away or curtailed on the ground of estoppel."

28. The question regarding the admissibility of evidence adduced before the Charity Commissioner has been adequately addressed by the High Court and we do not find any reason to interfere with the same. The observations of the High Court in this regard are as under

:

"21...It is well accepted that though the Charity Commissioner is not the Court, the procedure is to be followed like the Civil Court. The procedure as provided in the Civil Procedure Code would mutatis mutandis apply. In other words, though the Charity 37 Commissioner has discretion to have evolved his own procedure, normal procedure under the Civil Procedure Code is followed in such matter. It is required to be mentioned that even though strictly Civil Procedure Court (sic) may not be applicable, still the procedure is required to be followed in order to provide fair opportunity to other side to contest on every issue including the documents, which are sought to be produced and also to decide the probative value after it is exhibited as per the Evidence Act. Therefore, it is necessary that all such Resolutions etc. ought to have been placed on record, which has not been done. Therefore, what was not forming the part of the record in the original proceedings cannot be permitted to be supplemented by way of explanation in appeal." The appellants in this regard cited this Court's decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [2003 (8) SCC 752], wherein this Court held that the High Court was incorrect in rejecting the photocopies of documents as they were not originals. In this light, since the Charity Commissioner is not required to strictly adhere to the procedure under the Code of Civil Procedure, 1908 and the Evidence Act, 1872, the evidence submitted before the Charity Commissioner may be admissible unless they are against the basic principles of Evidence Law."

39. A batch of writ petitions being WPMS No.1173 of 2011 All Saints College Society Nainital and others vs. State of Uttarakhand and others, and connected matters, came before this Court, wherein a Coordinate Bench of this Court, vide judgment and order dated 19.03.2014, observed that the parties shall be at liberty to approach the competent civil court for adjudication of their respective rights about the entitlement to run the society, membership and officer bearers of the society running both the schools. Said judgment and order was assailed in SPA No.129 of 2014 and was upheld by the Division Bench vide its judgment and order dated 18.06.2014. While dismissing the appeal, the Division Bench observed that any party who wants adjudication of its right must go to the civil 38 court. Such order was not challenged before the Supreme Court and has attained finality.

40. Thereafter, a writ petition being WPMS No.1430 of 2014 was also filed on behalf of the Principal of the College Amandeep Sandhu, which was disposed of by this Court vide judgment dated 23.06.2014, in view of the statement made on behalf of respondent no.3 that respondent no.3 shall not interfere in the working of the petitioner and other staff of the college without adopting due process of law. Said judgment was challenged in Special Appeal No.661/2014, wherein the Division Bench, considering the interest of the students and the academic environment in the institute, disposed of the appeal vide judgment and order dated 25.04.2016, with the observation that the studies in the Institute must also go on smoothly and any interference which affects the smooth running of the Institute and is detrimental for students as well as education must also be discouraged.

41. In the writ petition, the petitioner claimed that it is the elected body, and referred one judgment of Hon'ble Allahabad High Court (Lucknow Bench) rendered in Writ Petition no.406 of 2015 Christ Church McConaghy School Society, Lucknow and another vs. Registrar Firms, Societies and Chits, Lucknow and others, which was disposed of vide judgment dated 28.05.2015, to show that the claim of John Augustine, as Bishop of Lucknow, has been dismissed by the Court. However, the petitioner who was not a party to the suit, and who derived its title from Church of North India, has concealed the material fact from this Court that Church of North India has lost its significance, as has been observed by this Court in preceding paragraphs.

42. Furthermore, vide deed dated 25.10.2008, it was claimed that several properties in Western U.P. and in Uttarakhand have been transferred to Agra Diocesan Trust Association, whereas, in stamp dispute case no.2299/2009, which was instituted as there was indeed insufficient stamp duty, an affidavit was filed by Secretary, ADTA stating that the property has not been transferred by Lucknow Diocesan Trust Association in favour of Agra Diocesan Trust Association. This fact finds support from the perusal of FIR lodged against the alleged members of LDTA who have fraudulently executed the trust deed dated 25.10.2008.

43. Having heard the rival submissions of learned counsel for the parties and having given my anxious consideration to the matter, it seems to this court that the judgment and order dated 25.02.2018 passed by this Court, has been obtained by the petitioners by suppressing the material facts as well as by playing fraud upon the Court. As such the applications seeking condonation of delay and recall or order dated 25.02.2018 are liable to be allowed.

44. Though the learned counsel for the petitioner, while opposing the modification and recall application, has submitted that the recall application is based on a subsequent event i.e. holding of meeting dated 21.10.2020, it would be worth mentioning that vide judgment and order dated 19.03.2014 passed by a Coordinate Bench of this Court, there was a specific observation that the parties shall be at liberty to approach the competent civil court for adjudication of their 40 respective rights about the entitlement to run the society, membership and officer bearers of the society running both the schools. Said judgment and order was assailed in SPA No.129 of 2014 and was upheld vide judgment and order dated 18.06.2014. But, inspite of specific directions in this regard, the writ petitioner convened the meeting on 21.10.2020. This Court, in its order dated 25.02.2018, had not granted any order in favour of the petitioner and had simply remanded the matter to the trial court for hearing and deciding the interim relief application, but in spite of that order, as also the order dated 19.03.2014, the petitioner Society has convened the meeting, which is in contravention to the directions issued by this Court.

45. Admittedly, respondent no.2 was the principal of the Institute and managing the affairs of the Institute but by convening the meeting on 20.10.2020, he was suspended by the Bishop of Agra pending disciplinary proceedings. Pursuant to the observations made by this Court vide judgment dated 19.03.2014, the petitioner has not filed any suit for declaration of its rights from the competent civil court nor has made any efforts to get impleaded in the pending civil suit. An impleadment application has been filed to implead the writ petitioner in the suit but no decision has been taken thereon so far. Instead of pursuing the impleadment application, the petitioner is taking shelter of this Court, which cannot be permitted by this Court. Since the judgment dated 19.03.2014 has attained finality, thus, without seeking any declaration from the competent court of jurisdiction, the petitioner herein cannot be permitted to interfere in the smooth functioning of the College. Thus, it is held that the 41 meeting convened by the petitioner Society is in total contravention of the orders passed by this Court.

46. It is settled position in law that a party should approach the Court with clean hands. That apart, non- mentioning and non-production of a vital document, would amount to commit fraud upon the Court. In the case at hand, the petitioner did not mention and concealed the judgment of Hon'ble Apex court in Vinod Kumar M. Malviya vs. Magan Lal Mangaldas Gameti & ors. (2013) 15 SCC 394 from this Court wherein the unification of six churches has been nullified by the Hon'ble Supreme Court. In the writ petition, the petitioner produced only such material before this Court, which was favourable to him and suppressed the one which was not its favour.

47. In Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others (2012) 4 SCC 728 the Hon'ble High Court held that it is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.

48. In Sciemed Overseas Inc. vs. BOC India Limited and others (2016) 3 SCC 70 the Hon'ble Supreme Court held that filing false or misleading statement itself is enough to invite adverse reaction. It is apt to refer to relevant observation as contained in para-28 of the judgment which reads as under:

"28. Justice dispensation system would be adversely affected if restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. The purity of proceedings of the court cannot be permitted to be engulfed by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements on oath."

49. Again in Sarvepalli Radhakrishnan University and another vs. Union of India and others (2019) 1 Scale 700 Hon'ble Supreme Court has held that it is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. It is apt to reproduce the necessary observations as contained in the judgment, which read as under:

"11. .... It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably.

12. In Re. Suo Motu Proceedings against R. Karuppan, Advocate (2001) 5 SCC 289, this Court observed as under:

"13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy."

50. It was also the contention of the learned senior counsel for the petitioner that at the most the respondent nos.3 and 4 could have filed the review application but the instant applications seeking recall and modification of the judgment is not at all maintainable. It is noteworthy that a review application can be maintained only when there is an error apparent on the face of record in view order 47 Rule 1 of CPC. 37. Order 47 Rule 1 of CPC, provides application for review of judgment. For kind reference Order 47 Rule 1 CPC is extracted hereunder:-

"1. Application for review of judgment.- (1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

51. In the instant case, the petitioner has not approached this Court with clean hands and has rather suppressed the material facts in order to obtain a favourable order from the Court. That apart, in the garb of judgment dated 25.02.2018 passed by this Court, the petitioner convened the meeting, without seeking declaration of its rights from the competent civil court of jurisdiction. In such circumstances, when the judgment has been obtained by concealment of material facts, the recall application is very much maintainable. Having considered the provisions of Order 47 rule 1 of CPC which 45 are also applicable to the writ court, as no other procedure of review is provided in exercising of writ jurisdiction, the review can be entertained when the Court finds that there is an error apparent on the face of the record in taking its decision. In the present case, the contention of learned counsel for respondent nos. 3 and 4 is that the petitioner in obtaining the order dated 20.05.2018 have played fraud upon the Court and has suppressed the material fact from this Court. This court has elaborately explained in the preceding paragraphs that it is a case of concealment of material facts from the Court while obtaining the order, therefore, this Court is of the firm view that review is only maintainable when there is an error apparent on the face of record, committed by the court but when the Court is convinced that fraud has been played by the petitioner in filing the writ petition and material fact has been suppressed from the Court and, therefore, only remedy of recall is available, in such contingencies the recall is maintainable. The contention of learned counsel appearing for the petitioner in this regard is misconceived and untenable.

52. In Brijesh Kumar and others vs State of Haryana and others, (2014) 11 SCC 351, Hon'ble Apex Court relying upon the previous judgment of Esha Bhattacharjee (supra) has laid down the various principles in paragraph 10 of said judgment, which reads as under:

"10. The Courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However, the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition 46 precedent for exercise of discretion by the court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not property, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds along."

53. In the case at hand, looking to the conduct, behavour and attitude of the petitioner in approaching this Court, delay must be condoned. Delay is therefore condoned. Delay condonation application stands allowed.

54. Now, coming finally on the modification and recall applications, this Court is very much aware about the legal position that the courts should be slow in recalling final order, but having considered the fact that the petitioner has concealed the material fact from this Court, as has been observed above, and without making any efforts to get its rights decided from the competent civil court, the petitioner is trying to take the law in its own hand, which is otherwise not permissible, this Court is of the view that the order impugned is liable to be recalled.

55. This Court cannot be oblivious of the fact that the interest of the students is supreme. Studies in the Institute should go on smoothly and the academic environment should also be maintained. In such a situation, this Court is of the considered view that till the rights of the parties are decided by the civil court, status quo should be maintained by the parties.

56. In State of Assam vs. Barak Upatyaka's case (2009) 5 SCC 694, the Hon'ble Apex Court observed that any interim direction issued on the basis of 47 such prima facie finding are temporary arrangement to preserve the status quo till the matter is finally decided to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. Para 21 of the aforesaid judgment is reproduced as under:-

"21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."

57. Consequently, in view of the reasons recorded above, modification as well as recall application stands allowed. Order dated 25.05.2018 is modified to the extent that unless the parties get their rights decided by the civil court pursuant to judgment and order dated 19.03.2014, which has attained finality, status quo shall be maintained by the parties qua the affairs of the College.

58. All the pending applications stand disposed of accordingly.

(Lok Pal Singh, J.) 27.01.2021 Rajni 48 49

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